JAGs sent to Gulf; would advise on legality of targets, strategies, weapons
 

March 11, 2003

JAGs sent to Gulf; would advise on legality of targets, strategies, weapons

By Steven Komarow
USA Today


KUWAIT CITY ? There could be civilians chained to an Iraqi missile launcher to serve as human shields. Tanks could be parked next to mosques. Chemical weapons plants might also produce medicine.
In a war with Iraq, U.S. commanders could often have an agonizing choice: strike a target and run the risk of killing civilians, and being accused by the rest of the world of committing a war crime, or hold fire and run the risk that Saddam Hussein will still have deadly weapons he can use against American and British troops or neighboring countries.

To help weigh those issues, the Pentagon has dispatched dozens of attorneys to command posts in the region. Their job: help keep America legal if President Bush unleashes its fury against Saddam?s forces.

Military commanders have long had legal advisers. But more than ever, attorneys are in the teams that choose the strategies, the targets and even the weapons to be used. Lawyers from the Army, Navy, Air Force and Marines will be working around-the-clock to be on hand when targets appear and fast decisions are needed.

With so much of the world skeptical of U.S. intentions, pressure will be high. ?The world expects the United States to do the right thing,? says Capt. Noah Malgeri, an Army lawyer.

?Collateral damage?

Col. Rocco Lamuro, who runs a course on ?targeting law? at Ramstein Air Base, Germany, says that when air power came of age in World War II, the missions would almost always be planned weeks in advance. There weren?t any spy satellites sending ?real-time? pictures of enemy movements ? and thus pushing commanders to make quick decisions on whether to strike. In World War II, there was plenty of time to discuss legalities and debate the potential ?collateral damage,? the unintentional killing of civilians.

It was also true back then that collateral damage was accepted as an unfortunate but natural part of war. Sixty years ago, ?you might send 100 B-17 (bombers) to try to destroy something that?s within an acre,? Lamuro says. There were no ?smart bombs? that could zero in on small targets. It was assumed that many bombs would hit ground far from the target. Today, Lamuro says, ?you?d send only one? bomber or missile, and the weapon would be expected to hit its target.

When missiles do go awry, as happened when the United States accidentally struck the Chinese Embassy in Belgrade in May 1999 or when a bomb dropped on Baghdad hit a shelter and killed 408 civilians in 1991, there is alarm worldwide.

What do U.S. military lawyers ? who work in offices of each service?s Judge Advocate General ? use to guide them?

The Law of Armed Conflict is a set of rules derived primarily from post-World War II Geneva Conventions. Commanders also must follow U.S. law and the top command?s rules of engagement.

The rules are not pie-in-the-sky pronouncements. They reflect how battles are fought. They try to protect innocents but recognize the reality of battle, Lamuro says. ?If you?re a priest who?s running around blessing people on the battlefield, you?re OK,? he says. ?If you pick up a gun, you?ll get shot. You can?t use a technicality to shield yourself.?

In most cases, there?s little dispute about the legality of clear military targets. A tank on a battlefield is always fair game. A school is not ? unless it can be proved that it?s used as a military site.

Other cases are less clear, and legal issues aren?t the only factors.

There is, for instance, the issue of human shields. The 1949 Geneva Convention specifically states that the presence of civilians cannot be used to render a target immune from attack. Just because an enemy has surrounded a weapons depot with civilian volunteers does not make it an illegal target. Even so, Lamuro says, commanders must also worry about ?the CNN test.? Is the target worth all the loss of innocent life ? and the inevitable outcry?

Targets such as dams and power plants also are hot-button issues because their destruction would harm civilians. The lawyers would advise they be destroyed only when necessary, Lamuro says. It?s practical advice, he says, because the military must be ?as concerned with winning the peace as winning the wars.?

Individuals

Targeting individuals is an especially difficult issue.

A year ago, there were numerous reports that a Predator drone aircraft loaded with Hellfire missiles had the ousted Taliban leader Mohammed Omar in its sights in Afghanistan. But no missile was fired, reportedly on the advice of a lawyer.

It isn?t known for sure whether the strike was scrubbed because civilians were nearby or for some other reason. But the incident provoked discussion about whether attorneys have too much influence. Lamuro says it would be wrong ?to overstate the lawyer?s role.? They are advisers, he says. Commanders make the ultimate choices.

One of the hottest legal topics that would be decided only at the highest levels is whether to target Saddam himself. Legally, it could depend on timing:

? Lawyers say that before a war, he would not be considered a valid military target. U.S. policy also prohibits assassinations of leaders.

? If there was a war and Saddam was commanding the Iraqi army, he would be considered a combatant and could be targeted.

? If he no longer had that role and allied forces caught him fleeing, the target status might be revoked. Instead, he might be given exile or arrested and charged with war crimes.

Another tenet of the Law of Armed Conflict is that the force used should be proportional to the task. For targeters, that fits neatly into their objective of conserving firepower.

?I look for the minimum number of targets that must be struck to adequately achieve the commander?s objective,? says one U.S. intelligence officer, who asked that his name not be reported to protect his identity.

In the end, neither the lawyers nor the other officers in the targeting teams have the final word on what will be struck.

Air plans are reviewed and approved up the chain of command ? again with attorneys on hand ? to make sure the individual pieces add up to a war plan that is legally defensible.



Sempers,

Roger